October 21, 2016

Written by Emrys Davis

The Supreme Court of Canada released a decision today regarding judicial intervention with jointly recommended criminal sentences following a guilty plea. The SCC adopted a high threshold which will be welcome news to those seeking predictability and certainty when negotiating resolutions in the context of the Canadian Competition Bureau's ("CCB") Leniency Program.

The case arose from a rejection of a jointly recommended sentence following a guilty plea for manslaughter. The sentencing judge increased the custodial term and added a term of probation after concluding that the jointly recommended sentence was "unfit".

In the context of a joint submission on sentencing, the SCC rejected the "fitness" test employed by the sentencing judge in favour of the more stringent public interest test: would the jointly recommended sentence bring the administration of justice into disrepute or is it otherwise contrary to the public interest? The SCC described this test as creating "an undeniably high threshold" that would require acceptance of a jointly recommended sentence unless the sentence was "so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down." The SCC's principal rationale for imposing such a high threshold was the prospect that too much judicial second-guessing of jointly recommended sentences would erode the certainty and predictably of the process and reduce the attractiveness of guilty pleas to the detriment of the criminal justice system and public interest more generally.

The SCC also set out the process that a sentencing judge must follow when considering a jointly recommended sentence, including the possibility of allowing the accused to withdraw the guilty plea if the jointly recommended sentence will not be accepted.

Businesses looking to resolve potential criminal conduct under the Competition Act and their counsel should welcome this decision. Increased judicial intervention in jointly recommended sentences creates uncertainty, which is precisely the outcome most businesses seek to avoid when they choose to resolve potential criminal exposure, plead guilty, and accept a jointly recommended sentence. The possibility that the accused may be permitted to withdraw its guilty plea is also a welcome development for businesses concerned about pleading guilty only to face a much higher sentence than expected and bargained for. Presumably, the CCB will welcome this decision as well since it protects the incentives for businesses who wish to take advantage of the CCB's Leniency Program.